While I'm against the death penalty for child rape in all cases, I agree with Professor Berman that the Kennedy case is a particularly poor choice of a defendant to execute. In the alternative, Berman suggests a case in South Carolina which would certainly make more sense for capital punishment:
Vinson Filyaw was sentenced to the maximum sentence of 421 years, served consecutively, for kidnapping a 14-year-old girl a year ago and sexually assaulting her in a dirt bunker for 10 days near Elgin. Filyaw pleaded guilty Tuesday to kidnapping, 10 counts of first-degree criminal sexual assault, two counts of second-degree criminal sexual assault, impersonating a police officer, possessing explosives and attempted armed robbery.
Filyaw, 37, posed as a police officer and handcuffed the girl last September as she walked toward her home from a school bus stop. He took her into the woods and kept her captive in a bunker booby-trapped with homemade explosives. The girl escaped after using Filyaw’s phone to send her mother a text message, helping authorities find the bunker’s location.... Filyaw said the rape and kidnapping spurred from a grievance with the Kershaw County Sheriff’s Department over a separate charge of sexual assault on a 12-year-old girl from 2005.
I agree that not only from a moral perspective, but also a strategic one, this case would make a lot more sense for prosecutors to have used as the test case for capital child rape statutes.